Commute Credit 2:16, July 5, 2016

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Commute Credit

By | March 7, 2013 | Blog | 0 comments
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Suppose you ask employees to report to an alternative site first thing in the morning, rather than commuting to the office. It might be for training, or a client meeting, or to pick up supplies. Do you owe them for their travel time and mileage for their drive from their homes to the alternative site?
Here are two familiar and established rules:
1.       Employers don’t have to pay for an employee’s ordinary commute to the usual workplace.
2.       Employers must pay for employees’ job-related travel time (other than ordinary commutes).
Unfortunately, there’s no clear rule about who pays for a commute to an alternative site. Nor is there certainty about how the two established rules apply to our situation. Rule 1 arguably doesn’t apply since the employees are not driving on their “ordinary commute.” However, Rule 2 doesn’t seem equitable if the employer must always pay for their travel even it’s a shorter distance than they’d drive (at their own expense) on their “ordinary commute.”
Although there are no clear rules for our situation, we’ve uncovered some signs about how the California Division of Labor Standards Enforcement (DLSE) – also known as the Labor Commissioner – might rule in this situation. According to our research, the DLSE may permit the employer to “credit” the employees’ ordinary commute time against their travel time to the alternative site.
For example, Section 46.3.1 of the DLSE Enforcement Manual discusses an employee traveling out-of-town rather than heading into the office:
“If the employee’s travel from his home to the airport is the same or substantially the same as the distance (and time) between his home and usual place of reporting for work, the travel time would not begin until the employee reached the airport.”
This language indicates that the employer must pay for employees’ trips to the alternative site (e.g., the airport) only to the extent that it exceeds their ordinary commute to their office.
Similarly, DLSE Opinion Letter 1994-02-16 discusses an employee going to a training event rather than a work site:
“Thus, if the training is to be held in or within a reasonable distance of the area where the worker is usually employed, there is no requirement that the travel time be compensated.”
This language also suggests the DLSE will allow employers a “credit” for an employee’s ordinary commute when the employee reports to an alternative site.
Finally, DLSE Opinion Letter 2003-04-22 discusses an employee being sent “on a short-term basis” to a different worksite. It also specifically discusses what happens when the alternative site is closer than the usual workplace:
“The travel time is measured by the difference between the time it normally takes the employee to travel from his or her home to the assigned work place and the time it takes the employee to travel from home to the distant work site. This could calculate to no commute time if, for instance, the travel time is less from the employee’s home to the distant work site than the normal commute travel time by the employee.” [emphasis added]
Accordingly, it appears that the Labor Commissioner may permit employers that direct an employee to report to an alternative site to pay only for the travel time that exceeds the employee’s normal commute to the usual workplace. Basically, when employees drive from their home (H) to an alternative site (X) rather than their usual office (O), the employer must pay for:
(The time it takes to drive from H to X) minus (The time it takes to drive from H to O)

Although this view may be persuasive for enforcement actions by the DLSE, unfortunately there is no case or statutory authority supporting this position. So, it’s not certain whether a court would agree with the DLSE’s view as recorded in its Enforcement Manual and Opinion Letters.

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